Friday, April 03, 2015

Was the Indiana Mess Merely Political Theater? Does it Matter?

by Neil H. Buchanan

The latest news from Indiana is that the governor has now signed an amendment to the state's new Religious Freedom Restoration Act, specifying that the new law will not authorize discrimination, including discrimination on account of sexual orientation. Everyone is amazed by how quickly this all happened, and the outcome is both surprising and delightful.

One question that has been raised along this very short road is whether the unamended version of Indiana's law could have caused the bad outcomes that raised people's hackles in the first place. Was Apple's CEO Tim Cook simply misinformed when he wrote his op-ed condemning the law? Even on the comments board for my Dorf on Law post earlier this week, readers fought about whether there was really anything to fight about. Maybe this was all political theater.

I disagree with that assessment, but let us imagine that the amendment really was unnecessary, which would require us to imagine that the unamended statute was meaningless in the first place. That is hardly unprecedented. States have been passing bizarrely unneeded laws regarding culture war issues for quite some time, including bans on sharia law. In 2004, the Bush reelection campaign engineered a series of state-level initiatives banning gay marriage, not to prevent those states' legislatures from suddenly approving gay marriage (which was not going to happen), but specifically to increase voter turnout among Republican voters. (This was the third part of the Bush/Cheney campaign's "fear, smears, and queers" strategy that Al Franken lampooned in The Truth: With Jokes.)

So let us consider as a possible scenario that the Republicans in the Indiana legislature, and its Republican governor, decided to pass a completely unnecessary (from the standpoint of bigots) and legally meaningless statute. Presumably, they did so to try to convince their base voters (pun intended) that the state's Republicans were on their side. It was all about sending a message to the world that Indiana thinks that religious "freedom" means giving people (and businesses) the right ... what ... not to deal with gay people -- but only in a way that is already permitted by law?

If it was all messaging, then the politicians deserved the very public national thrashing that they received, because the response to their message was simply a different message: Even the business wing of the Republican Party thinks that sending your message is stupid and damaging. Governor Pence et al. can hardly complain that they were unfairly misunderstood, if they went to such lengths to pass a law that (as I am stipulating here for purposes of argument) had no legal import, simply to score political points.

In any event, these events introduce one important new wrinkle into the Republican Party's internal war. Until now, as I discussed in Tuesday's post, the big question about Republicans was why the money men were not better able to control the zealots. The 2013 government shutdown was never supposed to happen, yet the Cruz-led forces actually managed to damage the Republican brand so badly that the party's leaders spent most of 2014 trying to reassure people that they could "govern responsibly." (They are still trying.)

It must mean something that the business wing of the party is willing to come down so hard on a gay rights issue, whereas it has been unwilling or unable to keep a tighter lid on the craziness regarding explicitly economic issues like budgets, the debt ceiling, and so on. (Yes, I know that the threat of economic boycotts, etc., were part of what drove the results in Indiana and Arkansas this week, and in Arizona before that.) Either the business establishment does not think that federal budgetary sanity is as important as appearing to be tolerant on gay rights, or the non-religious Tea Partiers are a tougher crowd than the Religious Right now appears to be.

Finally, let me return to my comments from Tuesday's post about Jeb Bush. It would have surprised no one if all of the other potential Republican presidential candidates had come down solidly on Pence's side. (In fact, many of them were savvy enough to be essentially absent on the issue.) But for Bush to say that there was nothing wrong with the law was different -- and not merely because it left Bush in the impossible position of trying to explain why a law with no content is worth defending.

The Bush strategy, as far as anyone can tell, has been to set himself up to run in the primaries as if he is already running in the general election. That is, he has taken positions on education and immigration that anger the party's base, on the theory that he can be viewed as a statesman with principles. The family name and a few hundred million dollars will secure the nomination, and then he can run as what currently counts as a moderate in the general election.

As I noted on Tuesday, however, Bush's error here is potentially a major problem for his campaign. Let me stipulate up front that there is almost no single moment that can sink a campaign. Even Mitt Romney's infamous remarks about the lazy, ungrateful 47% of the country would not have had nearly the impact that they had, were it not for his abysmal track record of saying things that showed him to be entitled and condescending. (His offer to bet $10,000 with Rick Perry during a debate was part of that track record.)

Therefore, if Bush's pander on the Indiana RFRA is ultimately an isolated matter, then we will quickly forget about the whole affair. If, on the other hand, this is merely the first indication that Bush really cannot compete in his party's primaries -- even with name recognition and money -- without pandering to the religious extremists, then that is a serious problem for him.

If I were a Bush supporter, I would also be worried that he was so out of step on this issue that he could not even see the value in remaining silent for a few days. If one of his supposed advantages is that he is chummy with the boys in the chambers of commerce, why did he not see that the business guys were so quickly and loudly signing up on the other side of this issue?

No, this week alone will not end Bush's viability as a candidate. What it does do is raise anew questions about his ability to win both the nomination and the general election. After all, if an unapologetically immoderate nominee were to emerge for the Republicans, he could run in the general election on the claim that "at least you know what he's for." The more Bush says stupid, pandering things to win the nomination, however, the less his excuse for running adds up.

And that is true whether or not the Indiana law had any content. If it did, then Bush was needlessly pandering in support of a law that does not give religious people anything that really matters to them. If the law did have content, however, then Bush took the side of religious bigots in a culture war landscape that has (happily) changed with lightning speed.

15 comments:

I understand that the assumption that the unamended RFRA did nothing was simply arguendo, but I think it's worth clarifying that the arguendo assumption is that it did nothing w/r/t private discrimination against LGBT persons. However, even that assumption is false (as Prof Buchanan apparently agrees). For example, the unamended (and the amended) Indiana RFRA would give an Amish driver of a horse and buggy a prima facie right to an exemption from a law forbidding anything but motor vehicles from certain state roads. (Indiana has the third largest Amish population in the country.) I'll have more to say about the more controversial aspects of the unaemended RFRA in my Verdict column next week, in the context of construing other state and the federal RFRA.

To me, the silver lining in all of this is that it will energize efforts to include orientation within the larger anti-discrimination legal framework. As a layman's way of posing it, I think this question would poll very well for gay rights advocates: "Do you support outlawing discrimination against gay people"?

Oddly (I guess), such a move at the federal level might surpass gender protection, because I don't think the Civil Rights Act covers women (as a matter of gender) when it comes to say, business accommodation. I'm pretty sure Mike wrote something about that a while back.

So, does the first comment mean that in 2014, even with such a large Amish population, Amish drivers were burdened because their buggies were not allowed on state roads?

I saw a few possible scenarios -- either about serving gays or things that don't seem to require such a broad law (one professor, e.g., flagged the recent case protecting beards in prison; but federal law already protects that) -- but not that.

Another question would be if the amendment still leaves open some problematic possibilities. Of course, it only covers RFRA claims, not general discrimination. Without existing laws, present in some localities, a business in Indiana can already discriminate against gays.

Perhaps such questions will be covered in the article. As to Bush, I'm unsure what he could have said. Conservatives that he has to attract to win primaries like the law.

I think Josh Blackman makes a good point-by-point argument about how the original Indiana version has effects next to no different than the federal version. (source) Additionally, multiple courts have held the federal version also applies to private suits and I think those courts are correct because of the particular wording in both the operative language and the federal RFRA's and Dictionary Act's definitions. I think the reaction was a combination of misinformation, fear, paranoia, cynicism, lies, and seeking "revenge" for Hobby Lobby. While I strongly support full equal rights for Members of the LGBTQA community, this reaction/strategy is not the way Anyone should want to "win".

Others, including various law professors, disagree with Josh Blackman. Links provided in the past comment on this subject. There very well might be some reasonable debate on the subject but those strong adjectives cited warrant another -- "unfair."

Supporters of the law are on record saying what the people whose equality you are so vocally in support fear. So, what is wrong exactly with people, who have been and continue to be discriminated against, worrying? Why is it bad for them to demand clearer evidence the law will not do certain things?

It would help both sides -- the state can have a RFRA law but show that it won't go too far. Why someone who "strongly supports" equality is upset is unclear.

The actual impact on business of laws like Indiana’s is zero. Yes despite any laws to the contrary there will always be a few non-descript bigots who will glory in their denial of services to any group that they do not like. In the south, these will be the dirty, largely empty, local restaurants that still refuse to serve African Americans, known only for the fact that no African American or any discerning American would ever want to eat there even if the hospitality were present. In other states there will be the florists and the bakers who recoil from the gay and lesbian community, but again these will be the small nasty prejudiced haters who in the scheme of things will be both ignored and forgotten.

The practical matter will be the symbolic, the political and the philosophical. No Republican can win the party’s nomination for any major office siding against the bigots on the religious right, so Bush’s reaction and others were to be expected. The only suspense here will be whether or not the press will do its job and expose the hypocrisy of the Republicans, or as widely expected give the right wing candidates a pass under the heading “yeah we know they need to pander to get nominated but since those positions are so morally offensive they can’t really believe them”.

I wish the reaction to Hobby Lobby had been federal legislation assuring female employees cost-free access to contraceptive coverage. Or that the reaction to numerous state laws restricting reproductive rights had been a loud outcry and then a repeal. Sadly, none of that is happening.

From different commenters: "As to Bush, I'm unsure what he could have said. Conservatives that he has to attract to win primaries like the law." and "No Republican can win the party’s nomination for any major office siding against the bigots on the religious right, so Bush’s reaction and others were to be expected."

One could say the same things about immigration and education standards, both of which enrage the base, yet Bush has been willing to take a stand on those issues. My point is that his capitulation on this issue -- an issue on which he almost immediately looked foolish and out of step with the electorate -- says something meaningful about his "I'm above it all" strategy. He could have hedged for a couple of days, at least, but instead he dove in on the issue. If he could not afford to piss off the base on this issue, even though he could afford to do so re immigration (which is a hot-button issue even for non-religious conservatives), I'd like to know why.

“If he could not afford to piss off the base on this issue, even though he could afford to do so re immigration (which is a hot-button issue even for non-religious conservatives), I'd like to know why.”

I think Mr. Buchanan answers his own question. Having moved away from the base on education and immigration Mr. Bush had no choice but to stay with the base on this issue. In this situation as in baseball, three strikes and you are out. So contradicting the base on the Indiana law would have just about put Mr. Bush out of the game. By putting himself into the pack of Republican candidates Mr. Bush did not stand out, in fact his comments were largely ignored.

Furthermore, this was an easy issue to meld with the religious conservatives in the Republican Party because in a few weeks, if not sooner the issue will be gone from the public’s focus. In politics there is little wrong with supporting a position that cannot become policy; one gets a pass much like the Scalia/Thomas dissents get little attention (and much less than they deserve).

This is why the expected Supreme Court decisions to allow SSM marriage and to hopefully uphold ACA are so important to Republicans. It will allow them to stridently oppose SSM and ACA without having the electoral baggage that goes with those positions because they will be seen for what they are, futile pandering to their base. (And no, the voting public does not punish pandering, they lap it up).

"let let us imagine that the amendment really was unnecessary, which would require us to imagine that the unamended statute was meaningless in the first place... If it was all about messaging ..."

As Dorf's first comment above shows, this is a flawed argument. Assuming the amendment was unnecessary doesn't require us to imagine that the unamended statute was meaningless, unless you imagine that the only possible purpose or effect of RFRA's is to carve out exceptions to anti-orientation-discrimination laws. Of course, that's not so. RFRAs do all sorts of other things, like allowing Muslim prisoners to wear beards, religious businessmen to decline to buy their employers health insurance that covers contraception, people who use peyote in their religious rituals to get unemployment compensation, etc. Ergo, Indiana's unamended RFRA could have done absolutely nothing with respect to anti-orientation discrimination without being meaningless, and therefore, without being "all messaging" about "the right . . . what . . . not to deal with gay people." Much like the federal RFRA, which obviously is neither meaningless, nor enacted to score anti-gay-rights political points, nor a license to engage in private discrimination against LGBT persons. Now, maybe you have some evidence that Indiana's RFRA was enacted to send a pro-discrimination message, or to license discrimination, but there are other eminently logically and practically possible alternatives. And at least as to licensing discrimination, it's really hard to see that that was the point of Indiana's RFRA as originally enacted, given that there's very little anti-orientation discrimination law in Indiana for the RFRA to carve out an exception from, and given that what little there is would probably stand up to strict scrutiny in much the same way the Court in Hobby Lobby says racial discrimination law would easily stand up to strict scrutiny under the federal RFRA.